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The following case is associated
with Webnote A on page 38
Grayned
v. City of Rockford
408 U.S. 104
U. S. Supreme Court
June 26, 1972
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Appellant Richard Grayned was convicted for
his part in a demonstration in front of West Senior High School in Rockford,
Illinois. Negro students at the school had first presented their grievances
to school administrators. When the principal took no action on crucial
complaints, a more public demonstration of protest was planned. On April
25, 1969, approximately 200 people--students, their family members, and
friends--gathered next to the school grounds. Appellant, whose brother
and twin sisters were attending the school, was part of this group. The
demonstrators marched around on a sidewalk about 100 feet from the school
building, which was set back from the street. Many carried signs which summarized
the grievances: "Black cheerleaders to cheer too"; "Black history with
black teachers"; "Equal rights, Negro counselors." Others, without placards,
made the "power to the people" sign with their upraised and clenched fists.
In other respects, the evidence at appellant's
trial was sharply contradictory. Government witnesses reported that
the demonstrators repeatedly cheered, chanted, baited policemen, and
made other noise that was audible in the school; that hundreds of students
were distracted from their school activities and lined the classroom windows
to watch the demonstration; that some demonstrators successfully yelled
to their friends to leave the school building and join the demonstration;
that uncontrolled latenesses after period changes in the school were far
greater than usual, with late students admitting that they had been watching
the demonstration; and that, in general, orderly school procedure was
disrupted. Defense witnesses claimed that the demonstrators were at all
times quiet and orderly; that they did not seek to violate the law, but
only to "make a point"; that the only noise was made by policemen using
loudspeakers; that almost no students were noticeable at the schoolhouse
windows; and that orderly school procedure was not disrupted.
After warning the demonstrators, the police
arrested 40 of them, including appellant.... For participating in the
demonstration, Grayned was tried and convicted of violating two Rockford
ordinances, hereinafter referred to as the "antipicketing" ordinance and
the "antinoise" ordinance. A $25 fine was imposed for each violation. Since
Grayned challenged the constitutionality of each ordinance, he appealed
directly to the Supreme Court of Illinois. Ill. Sup. Ct. Rule 302. He claimed
that the ordinances were invalid on their face, but did not urge that, as
applied to him, the ordinances had punished constitutionally protected activity.
The Supreme Court of Illinois held that both ordinances were constitutional
on their face. 46 Ill. 2d 492, 263 N. E. 2d 866 (1970). We noted probable
jurisdiction, 404 U. S. 820 (1971). We conclude that the antipicketing ordinance
is unconstitutional, but affirm the court below with respect to the antinoise
ordinance.
I
At the time of
appellant's arrest and conviction, Rockford's antipicketing ordinance provided
that
"A person commits disorderly conduct when he knowingly..."
"(i)
Pickets or demonstrates on a public way within 150 feet of any primary
or secondary school building while the school is in session and one-half
hour before the school is in session and one-half hour after the school
session has been concluded, provided that this subsection does not prohibit
the peaceful picketing of any school involved in a labor dispute ...."
Code of Ordinances, c. 28, § 18.1 (i).
This ordinance is
identical to the Chicago disorderly conduct ordinance we have today considered
in Police Department of Chicago v. Mosley, ante, p. 92. For
the reasons given in Mosley, we agree with dissenting Justice Schaefer
below, and hold that § 18.1 (i) violates the Equal Protection Clause
of the Fourteenth Amendment. Appellant's conviction under this invalid
ordinance must be reversed....
II
The antinoise
ordinance reads, in pertinent part, as follows:
"No person, while on public or private grounds adjacent to any
building in which a school or any class thereof is in session, shall
willfully make or assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order of such school session
or class thereof...." Code of Ordinances, c. 28, § 19.2 (a).
Appellant claims that, on its face, this ordinance is both vague
and overbroad, and therefore unconstitutional. We conclude, however,
that the ordinance suffers from neither of these related infirmities.
A. Vagueness
It is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that man is
free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning.... Second, if arbitrary
and discriminatory enforcement is to be prevented, laws must provide explicit
standards for those who apply them.... A vague law impermissibly delegates
basic policy matters to policemen, judges, and juries for resolution on
an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.... Third, but related, where
a vague statute "abut[s] upon sensitive areas of basic First Amendment
freedoms,"... it "operates to inhibit the exercise of [those] freedoms."...
Uncertain meanings inevitably lead citizens to "'steer far wider of the
unlawful zone' ... than if the boundaries of the forbidden areas were clearly
marked." ...
Although the question
is close, we conclude that the antinoise ordinance is not impermissibly
vague. The court below rejected appellant's arguments "that proscribed
conduct was not sufficiently specified and that police were given too broad
a discretion in determining whether conduct was proscribed." 46 Ill. 2d,
at 494, 263 N. E. 2d, at 867. Although it referred to other, similar statutes
it had recently construed and upheld, the court below did not elaborate
on the meaning of the antinoise ordinance.... In this situation, as Mr. Justice
Frankfurter put it, we must "extrapolate its allowable meaning." ... Here,
we are "relegated ... to the words of the ordinance itself," ... to the
interpretations the court below has given to analogous statutes... and,
perhaps to some degree, to the interpretation of the statute given by those
charged with enforcing it.... "Extrapolation," of course, is a delicate
task, for it is not within our power to construe and narrow state laws....
With that warning, we find no unconstitutional vagueness in the
antinoise ordinance. Condemned to the use of words, we can never expect
mathematical certainty from our language.... The words of the Rockford
ordinance are marked by "flexibility and reasonable breadth, rather than
meticulous specificity," Esteban v. Central Missouri State College,
415 F.2d 1077, 1088 (CA8 1969) (Blackmun, J.), cert. denied, 398 U.S. 965
(1970), but we think it is clear what the ordinance as a whole prohibits.
Designed, according to its preamble, "for the protection of Schools," the
ordinance forbids deliberately noisy or diversionary... activity that disrupts
or is about to disrupt normal school activities. It forbids this willful
activity at fixed times--when school is in session--and at a sufficiently
fixed place--"adjacent" to the school. ... Were we left with just the words
of the ordinance, we might be troubled by the imprecision of the phrase
"tends to disturb." ... However, in Chicago v. Meyer, 44 Ill. 2d
1, 4, 253 N. E. 2d 400, 402 (1969), and Chicago v. Gregory, 39 Ill.
2d 47, 233 N. E. 2d 422 (1968), reversed on other grounds, 394 U.S. 111 (1969),
the Supreme Court of Illinois construed a Chicago ordinance prohibiting,
inter alia, a "diversion tending to disturb the peace," and held that
it permitted conviction only where there was " imminent threat of
violence." (Emphasis supplied.) See Gregory v. Chicago, 394 U.S.
111, 116-117, 121-122 (1969) (Black, J., concurring). ... Since Meyer
was specifically cited in the opinion below, and it in turn drew heavily
on Gregory, we think it proper to conclude that the Supreme Court
of Illinois would interpret the Rockford ordinance to prohibit only actual
or imminent interference with the "peace or good order" of the school....
Although the prohibited quantum of disturbance is not specified
in the ordinance, it is apparent from the statute's announced purpose
that the measure is whether normal school activity has been or is about
to be disrupted. We do not have here a vague, general "breach of the peace"
ordinance, but a statute written specifically for the school context,
where the prohibited disturbances are easily measured by their impact
on the normal activities of the school. Given this "particular context,"
the ordinance gives "fair notice to those to whom [it] is directed."...
Although the Rockford ordinance may not be as precise as the statute
we upheld in Cameron v. Johnson, 390 U.S. 611 (1968)--which prohibited
picketing "in such a manner as to obstruct or unreasonably interfere with
free ingress or egress to and from" any courthouse--we think that, as in
Cameron, the ordinance here clearly "delineates its reach in
words of common understanding." Id., at 616.
Cox v. Louisiana,
379 U.S. 536 (1965), and Coates v. Cincinnati, 402 U.S. 611 (1971),
on which appellant particularly relies, presented completely different
situations. In Cox, a general breach of the peace ordinance had
been construed by state courts to mean, "to agitate, to arouse from a state
of repose, to molest, to interrupt, to hinder, to disquiet." The Court
correctly concluded that, as construed, the ordinance permitted persons
to be punished for merely expressing unpopular views.... In Coates,
the ordinance punished the sidewalk assembly of three or more persons who
"conduct themselves in a manner annoying to persons passing by ..." We held,
in part, that the ordinance was impermissibly vague because enforcement
depended on the completely subjective standard of "annoyance."
In contrast, Rockford's antinoise ordinance does not permit punishment
for the expression of an unpopular point of view, and it contains no
broad invitation to subjective or discriminatory enforcement. Rockford
does not claim the broad power to punish all "noises" and "diversions."
... The vagueness of these terms, by themselves, is dispelled by the ordinance's
requirements that (1) the "noise or diversion" be actually incompatible
with normal school activity; (2) there be a demonstrated causality between
the disruption that occurs and the "noise or diversion"; and (3) the
acts be "willfully" done.... "Undesirables " or their "annoying" conduct
may not be punished. The ordinance does not permit people to "stand on
a public sidewalk ... only at the whim of any police officer."... Rather,
there must be demonstrated interference with school activities. As always,
enforcement requires the exercise of some degree of police judgment, but,
as confined, that degree of judgment here is permissible. The Rockford
City Council has made the basic policy choices, and has given fair warning
as to what is prohibited. "The ordinance defines boundaries sufficiently
distinct" for citizens, policemen, juries, and appellate judges. ... It
is not impermissibly vague.
B. Overbreadth
A clear and precise
enactment may nevertheless be "overbroad" if in its reach it prohibits
constitutionally protected conduct.... Although appellant does not claim
that, as applied to him, the antinoise ordinance has punished protected
expressive activity, he claims that the ordinance is overbroad on its face.
Because overbroad laws, like vague ones, deter privileged activity, our
cases firmly establish appellant's standing to raise an overbreadth challenge....
The crucial question, then, is whether the ordinance sweeps within its
prohibitions what may not be punished under the First and Fourteenth Amendments.
Specifically, appellant contends that the Rockford ordinance unduly interferes
with First and Fourteenth Amendment rights to picket on a public sidewalk
near a school. We disagree.
In considering the
right of a municipality to control the use of public streets for the expression
of religious [or political] views, we start with the words of Mr. Justice
Roberts that 'Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.' Hague v.
CIO, 307 U.S. 496, 515 (1939)." Kunz v. New York, 340 U.S.
290, 293 (1951). See Shuttlesworth v. Birmingham, 394 U.S. 147,
152 (1969). The right to use a public place for expressive activity may
be restricted only for weighty reasons.
Clearly, government has no power to restrict such activity because
of its message.... Our cases make equally clear, however, that reasonable
"time, place and manner" regulations may be necessary to further significant
governmental interests, and are permitted.... For example, two parades
cannot march on the same street simultaneously, and government may allow
only one. Cox v. New Hampshire, 312 U.S. 569, 576 (1941). A demonstration
or parade on a large street during rush hour might put an intolerable
burden on the essential flow of traffic, and for that reason could be prohibited.
Cox v. Louisiana, 379 U.S., at 554. If overamplified loudspeakers
assault the citizenry, government may turn them down. Kovacs v. Cooper,
336 U.S. 77 (1949); Saia v. New York, 334 U.S. 558, 562 (1948).
Subject to such reasonable regulation, however, peaceful demonstrations
in public places are protected by the First Amendment... Of course, where
demonstrations turn violent, they lose their protected quality as expression
under the First Amendment....
The nature of a place, "the pattern of its normal activities, dictate
the kinds of regulations of time, place, and manner that are reasonable."...
Although a silent vigil may not unduly interfere with a public library,
Brown v. Louisiana, 383 U.S. 131 (1966), making a speech
in the reading room almost certainly would. That same speech should be
perfectly appropriate in a park. The crucial question is whether the manner
of expression is basically incompatible with the normal activity of a
particular place at a particular time. Our cases make clear that in assessing
the reasonableness of a regulation, we must weigh heavily the fact that
communication is involved; ... the regulation must be narrowly tailored
to further the State's legitimate interest.... Access to the "streets,
sidewalks, parks, and other similar public places ... for the purpose of
exercising [First Amendment rights] cannot constitutionally be denied
broadly ...."... Free expression "must not, in the guise of regulation,
be abridged or denied." ...
In light of these general principles, we do not think that Rockford's
ordinance is an unconstitutional regulation of activity around a school.
Our touchstone is Tinker v. Des Moines School District, 393 U.S.
503 (1969), in which we considered the question of how to accommodate First
Amendment rights with the "special characteristics of the school environment."
Id., at 506. Tinker held that the Des Moines School
District could not punish students for wearing black armbands to school
in protest of the Vietnam War. Recognizing that "wide exposure to ... robust
exchange of ideas" is an "important part of the educational process" and
should be nurtured, id., at 512, we concluded that free expression
could not be barred from the school campus. We made clear that "undifferentiated
fear or apprehension of disturbance is not enough to overcome the right
to freedom of expression," id., at 508, ... and that particular expressive
activity could not be prohibited because of a "mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint,"
id., at 509. But we nowhere suggested that students, teachers, or anyone
else has an absolute constitutional right to use all parts of a school building
or its immediate environs for his unlimited expressive purposes. Expressive
activity could certainly be restricted, but only if the forbidden conduct
"materially disrupts classwork or involves substantial disorder or invasion
of the rights of others." Id., at 513. The wearing of armbands was
protected in Tinker because the students "neither interrupted
school activities nor sought to intrude in the school affairs or the lives
of others. They caused discussion outside of the classrooms, but no interference
with work and no disorder." Id., at 514. Compare Burnside
v. Byars, 363 F.2d 744 (CA5 1966), and Butts v. Dallas Ind. School
District, 436 F.2d 728 (CA5 1971), with Blackwell v. Issaquena County
Board of Education, 363 F.2d 749 (CA5 1966).
Just as Tinker made clear that school property may not be declared
off limits for expressive activity by students, we think it clear that
the public sidewalk adjacent to school grounds may not be declared off
limits for expressive activity by members of the public. But in each case,
expressive activity may be prohibited if it "materially disrupts classwork
or involves substantial disorder or invasion of the rights of others."
Tinker v. Des Moines School District, 393 U.S., at 513....
We would be ignoring reality if we did not recognize that the public
schools in a community are important institutions, and are often the
focus of significant grievances.... Without interfering with normal school
activities, daytime picketing and handbilling on public grounds near
a school can effectively publicize those grievances to pedestrians, school
visitors, and deliverymen, as well as to teachers, administrators, and
students. Some picketing to that end will be quiet and peaceful, and will
in no way disturb the normal functioning of the school. For example, it
would be highly unusual if the classic expressive gesture of the solitary
picket disrupts anything related to the school, at least on a public sidewalk
open to pedestrians.... On the other hand, schools could hardly tolerate
boisterous demonstrators who drown out classroom conversation, make studying
impossible, block entrances, or incite children to leave the schoolhouse....
Rockford's antinoise ordinance goes no further than Tinker
says a municipality may go to prevent interference with its schools. It
is narrowly tailored to further Rockford's compelling interest in having
an undisrupted school session conducive to the students' learning, and
does not unnecessarily interfere with First Amendment rights. Far from
having an impermissibly broad prophylactic ordinance,.... Rockford punishes
only conduct which disrupts or is about to disrupt normal school activities.
That decision is made, as it should be, on an individualized basis, given
the particular fact situation. Peaceful picketing which does not interfere
with the ordinary functioning of the school is permitted. And the ordinance
gives no license to punish anyone because of what he is saying. ...
We recognize that the ordinance prohibits some picketing that is
neither violent nor physically obstructive. Noisy demonstrations that
disrupt or are incompatible with normal school activities are obviously
within the ordinance's reach. Such expressive conduct may be constitutionally
protected at other places or other times, cf. Edwards v. South Carolina,
372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965), but
next to a school, while classes are in session, it may be prohibited....
The antinoise ordinance imposes no such restriction on expressive activity
before or after the school session, while the student/faculty "audience"
enters and leaves the school.
In Cox v. Louisiana, 379 U.S. 559 (1965), this Court indicated
that, because of the special nature of the place, ... persons could be
constitutionally prohibited from picketing "in or near" a courthouse "with
the intent of interfering with, obstructing, or impeding the administration
of justice." Likewise, in Cameron v. Johnson, 390 U.S. 611 (1968),
we upheld a statute prohibiting picketing "in such a manner as to obstruct
or unreasonably interfere with free ingress or egress to and from any ...
county ... courthouses."... As in those two cases, Rockford's modest restriction
on some peaceful picketing represents a considered and specific legislative
judgment that some kinds of expressive activity should be restricted at
a particular time and place, here in order to protect the schools. ... Such
a reasonable regulation is not inconsistent with the First and Fourteenth
Amendments.... The antinoise ordinance is not invalid on its face. ...
The judgment is
Affirmed in part and reversed in part.
MR. JUSTICE DOUGLAS, dissenting in part.
While I join Part I of the Court's opinion, I would also reverse
the appellant's conviction under the antinoise ordinance....
Appellant was one of 200 people picketing a school and carrying
signs promoting a black cause--"Black cheerleaders to cheer too," "Black
history with black teachers," "We want our rights," and the like. Appellant,
however, did not himself carry a picket sign. There was no evidence that
he yelled or made any noise whatsoever. Indeed, the evidence reveals that
appellant simply marched quietly and on one occasion raised his arm in
the "power to the people" salute.
The pickets were mostly students; but they included former
students, parents of students, and concerned citizens. They had made
proposals to the school board on their demands and were turned down. Hence
the picketing. The picketing was mostly by black students who were counseled
and advised by a faculty member of the school. The school contained 1,800
students. Those counseling the students advised they must be quiet, walk
hand in hand, no whispering, no talking.
Twenty-five policemen were stationed nearby. There was noise but
most of it was produced by the police who used loudspeakers to explain
the local ordinance and to announce that arrests might be made. The picketing
did not stop, and some 40 demonstrators, including appellant, were arrested.
The picketing lasted 20 to 30 minutes and some students went to
the windows of the classrooms to observe it. It is not clear how many
there were. The picketing was, however, orderly or, as one officer testified,
"very orderly." There was no violence. And appellant made no noise whatever.
What Mr. Justice Roberts said in Hague v. CIO, 307 U.S.
496, 515-516, has never been questioned:
"Wherever
the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights,
and liberties of citizens. The privilege of a citizen of the United States
to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied."
We held in Cox v. Louisiana, 379 U.S. 536, 544-545, that
a State could not infringe the right of free speech and free assembly
by convicting demonstrators under a "disturbing the peace" ordinance where
all that the students in that case did was to protest segregation and
discrimination against blacks by peaceably assembling and marching to the
courthouse where they sang, prayed, and listened to a speech, but where there
was no violence, no rioting, no boisterous conduct.
The school where the present picketing occurred was the center
of a racial conflict. Most of the pickets were indeed students in the
school. The dispute doubtless disturbed the school; and the blaring of
the loudspeakers of the police was certainly a "noise or diversion" in
the meaning of the ordinance. But there was no evidence that appellant
was noisy or boisterous or rowdy. He walked quietly and in an orderly
manner. As I read this record, the disruptive force loosed at this school
was an issue dealing with race--an issue that is preeminently one for
solution by First Amendment means.... That is all that was done here; and
the entire picketing, including appellant's part in it, was done in the
best First Amendment tradition.
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The following case is associated with Webnote
B on page 46.
Lawrence
v. Texas
No. 02-102
U.S. Supreme Court
Decided June 26,
2003
Justice Kennedy
delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into
a dwelling or other private places. In our tradition the State is not
omnipresent in the home. And there are other spheres of our lives and existence,
outside the home, where the State should not be a dominant presence. Freedom
extends beyond spatial bounds. Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate
conduct. The instant case involves liberty of the person both in its spatial
and more transcendent dimensions.
I
The question before
the Court is the validity of a Texas statute making it a crime for two
persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas,
officers of the Harris County Police Department were dispatched to a private
residence in response to a reported weapons disturbance. They entered
an apartment where one of the petitioners, John Geddes Lawrence, resided.
The right of the police to enter does not seem to have been questioned.
The officers observed Lawrence and another man, Tyron Garner, engaging in
a sexual act. The two petitioners were arrested, held in custody over night,
and charged and convicted before a Justice of the Peace.
The complaints described
their crime as "deviate sexual intercourse, namely anal sex, with a
member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The
applicable state law is Tex. Penal Code Ann. §21.06(a) (2003).
It provides: "A person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex." The statute defines
"[d]eviate sexual intercourse" as follows:
"(A) any contact
between any part of the genitals of one person and the mouth or anus of
another person; or"
"(B) the penetration
of the genitals or the anus of another person with an object." §21.01(1).
The petitioners exercised
their right to a trial de novo in Harris County Criminal Court.
They challenged the statute as a violation of the Equal Protection Clause
of the Fourteenth Amendment and of a like provision of the Texas Constitution.
Tex. Const., Art. 1, §3a. Those contentions were rejected. The petitioners,
having entered a plea of nolo contendere, were each fined $200
and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.
The Court of Appeals
for the Texas Fourteenth District considered the petitioners' federal
constitutional arguments under both the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. After hearing the case en banc the
court, in a divided opinion, rejected the constitutional arguments and affirmed
the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority opinion
indicates that the Court of Appeals considered our decision in Bowers
v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal
due process aspect of the case. Bowers then being authoritative,
this was proper.
We granted certiorari,
537 U. S. 1044 (2002), to consider three questions:
"1. Whether Petitioners'
criminal convictions under the Texas "Homosexual Conduct" law--which
criminalizes sexual intimacy by same-sex couples, but not identical behavior
by different-sex couples--violate the Fourteenth Amendment guarantee
of equal protection of laws?"
"2. Whether Petitioners'
criminal convictions for adult consensual sexual intimacy in the home
violate their vital interests in liberty and privacy protected by the
Due Process Clause of the Fourteenth Amendment?"
"3. Whether Bowers
v. Hardwick, 478 U. S. 186 (1986), should be overruled?" Pet. for
Cert. i.
The petitioners
were adults at the time of the alleged offense. Their conduct was in private
and consensual.
II
We conclude the
case should be resolved by determining whether the petitioners were free
as adults to engage in the private conduct in the exercise of their liberty
under the Due Process Clause of the Fourteenth Amendment to the Constitution.
For this inquiry we deem it necessary to reconsider the Court's holding
in Bowers.
There are broad statements
of the substantive reach of liberty under the Due Process Clause in
earlier cases, including Pierce v. Society of Sisters, 268 U.
S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but
the most pertinent beginning point is our decision in Griswold v.
Connecticut, 381 U. S. 479 (1965).
In Griswold
the Court invalidated a state law prohibiting the use of drugs or devices
of contraception and counseling or aiding and abetting the use of contraceptives.
The Court described the protected interest as a right to privacy and placed
emphasis on the marriage relation and the protected space of the marital
bedroom. Id., at 485.
After Griswold
it was established that the right to make certain decisions regarding sexual
conduct extends beyond the marital relationship. In Eisenstadt v.
Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting
the distribution of contraceptives to unmarried persons. The case was
decided under the Equal Protection Clause, id., at 454; but with
respect to unmarried persons, the Court went on to state the fundamental
proposition that the law impaired the exercise of their personal rights,
ibid. It quoted from the statement of the Court of Appeals
finding the law to be in conflict with fundamental human rights, and it
followed with this statement of its own:
"It is true that
in Griswold the right of privacy in question inhered in the marital
relationship.... If the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person
as the decision whether to bear or beget a child." Id., at 453.
The opinions in Griswold
and Eisenstadt were part of the background for the decision in Roe
v. Wade, 410 U. S. 113 (1973). As is well known, the case involved
a challenge to the Texas law prohibiting abortions, but the laws of other
States were affected as well. Although the Court held the woman's rights
were not absolute, her right to elect an abortion did have real and substantial
protection as an exercise of her liberty under the Due Process Clause.
The Court cited cases that protect spatial freedom and cases that go
well beyond it. Roe recognized the right of a woman to make certain
fundamental decisions affecting her destiny and confirmed once more that
the protection of liberty under the Due Process Clause has a substantive
dimension of fundamental significance in defining the rights of the person.
In Carey v. Population
Services Int'l, 431 U. S. 678 (1977), the Court confronted a New
York law forbidding sale or distribution of contraceptive devices to
persons under 16 years of age. Although there was no single opinion for
the Court, the law was invalidated. Both Eisenstadt and Carey,
as well as the holding and rationale in Roe, confirmed that the
reasoning of Griswold could not be confined to the protection
of rights of married adults. This was the state of the law with respect
to some of the most relevant cases when the Court considered Bowers v.
Hardwick.
The facts in Bowers
had some similarities to the instant case. A police officer, whose right
to enter seems not to have been in question, observed Hardwick, in his
own bedroom, engaging in intimate sexual conduct with another adult male.
The conduct was in violation of a Georgia statute making it a criminal
offense to engage in sodomy. One difference between the two cases is that
the Georgia statute prohibited the conduct whether or not the participants
were of the same sex, while the Texas statute, as we have seen, applies
only to participants of the same sex. Hardwick was not prosecuted, but
he brought an action in federal court to declare the state statute invalid.
He alleged he was a practicing homosexual and that the criminal prohibition
violated rights guaranteed to him by the Constitution. The Court, in an
opinion by Justice White, sustained the Georgia law. Chief Justice Burger
and Justice Powell joined the opinion of the Court and filed separate, concurring
opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun,
J., joined by Brennan, Marshall, and Stevens, JJ.); id., at
214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.).
The Court began its
substantive discussion in Bowers as follows: "The issue presented
is whether the Federal Constitution confers a fundamental right upon homosexuals
to engage in sodomy and hence invalidates the laws of the many States that
still make such conduct illegal and have done so for a very long time."
Id., at 190. That statement, we now conclude, discloses the
Court's own failure to appreciate the extent of the liberty at stake. To
say that the issue in Bowers was simply the right to engage in certain
sexual conduct demeans the claim the individual put forward, just as it
would demean a married couple were it to be said marriage is simply about
the right to have sexual intercourse. The laws involved in Bowers
and here are, to be sure, statutes that purport to do no more than prohibit
a particular sexual act. Their penalties and purposes, though, have more
far-reaching consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home. The statutes
do seek to control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of persons to choose
without being punished as criminals.
This, as a general
rule, should counsel against attempts by the State, or a court, to define
the meaning of the relationship or to set its boundaries absent injury
to a person or abuse of an institution the law protects. It suffices for
us to acknowledge that adults may choose to enter upon this relationship
in the confines of their homes and their own private lives and still retain
their dignity as free persons. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a
personal bond that is more enduring. The liberty protected by the Constitution
allows homosexual persons the right to make this choice.
Having misapprehended
the claim of liberty there presented to it, and thus stating the claim
to be whether there is a fundamental right to engage in consensual sodomy,
the Bowers Court said: "Proscriptions against that conduct have
ancient roots." Id., at 192. In academic writings, and in many of
the scholarly amicus briefs filed to assist the Court in this case, there
are fundamental criticisms of the historical premises relied upon by the
majority and concurring opinions in Bowers. Brief for Cato Institute
as Amicus Curiae 16-17; Brief for American Civil Liberties Union
et al. as Amici Curiae 15-21; Brief for Professors of
History et al. as Amici Curiae 3-10. We need not enter this debate
in the attempt to reach a definitive historical judgment, but the following
considerations counsel against adopting the definitive conclusions upon
which Bowers placed such reliance.
At the outset it should
be noted that there is no longstanding history in this country of laws
directed at homosexual conduct as a distinct matter. Beginning in colonial
times there were prohibitions of sodomy derived from the English criminal
laws passed in the first instance by the Reformation Parliament of 1533.
The English prohibition was understood to include relations between men and
women as well as relations between men and men. See, e.g., King v. Wiseman,
92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533
as including women and girls). Nineteenth-century commentators similarly
read American sodomy, buggery, and crime-against-nature statutes as criminalizing
certain relations between men and women and between men and men. See, e.g.,
2 J. Bishop, Criminal Law §1028 (1858); 2 J. Chitty, Criminal
Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American
Criminal Law 143 (1882); J. May, The Law of Crimes §203
(2d ed. 1893). The absence of legal prohibitions focusing on homosexual
conduct may be explained in part by noting that according to some scholars
the concept of the homosexual as a distinct category of person did not emerge
until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality
10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History
of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality
and heterosexuality do not apply to an era that had not yet
articulated these distinctions"). Thus early American sodomy laws were not
directed at homosexuals as such but instead sought to prohibit nonprocreative
sexual activity more generally. This does not suggest approval of homosexual
conduct. It does tend to show that this particular form of conduct was not
thought of as a separate category from like conduct between heterosexual
persons.
Laws prohibiting sodomy
do not seem to have been enforced against consenting adults acting in private.
A substantial number of sodomy prosecutions and convictions for which there
are surviving records were for predatory acts against those who could not
or did not consent, as in the case of a minor or the victim of an assault.
As to these, one purpose for the prohibitions was to ensure there would
be no lack of coverage if a predator committed a sexual assault that did
not constitute rape as defined by the criminal law. Thus the model sodomy
indictments presented in a 19th-century treatise, see 2 Chitty, supra,
at 49, addressed the predatory acts of an adult man against a minor girl
or minor boy. Instead of targeting relations between consenting adults in
private, 19th-century sodomy prosecutions typically involved relations between
men and minor girls or minor boys, relations between adults involving force,
relations between adults implicating disparity in status, or relations between
men and animals.
To the extent that
there were any prosecutions for the acts in question, 19th-century evidence
rules imposed a burden that would make a conviction more difficult to
obtain even taking into account the problems always inherent in prosecuting
consensual acts committed in private. Under then-prevailing standards,
a man could not be convicted of sodomy based upon testimony of a consenting
partner, because the partner was considered an accomplice. A partner's testimony,
however, was admissible if he or she had not consented to the act or was
a minor, and therefore incapable of consent. See, e.g., F. Wharton,
Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law
512 (8th ed. 1880). The rule may explain in part the infrequency of these
prosecutions. In all events that infrequency makes it difficult to say that
society approved of a rigorous and systematic punishment of the consensual
acts committed in private and by adults. The longstanding criminal prohibition
of homosexual sodomy upon which the Bowers decision placed such reliance
is as consistent with a general condemnation of nonprocreative sex as it
is with an established tradition of prosecuting acts because of their homosexual
character.
The policy of punishing
consenting adults for private acts was not much discussed in the early
legal literature. We can infer that one reason for this was the very
private nature of the conduct. Despite the absence of prosecutions, there
may have been periods in which there was public criticism of homosexuals
as such and an insistence that the criminal laws be enforced to discourage
their practices. But far from possessing "ancient roots," Bowers,
478 U. S., at 192, American laws targeting same-sex couples did not develop
until the last third of the 20th century. The reported decisions concerning
the prosecution of consensual, homosexual sodomy between adults for the
years 1880-1995 are not always clear in the details, but a significant
number involved conduct in a public place. See Brief for American Civil
Liberties Union et al. as Amici Curiae 14-15, and n. 18.
It was not until the
1970s that any State singled out same-sex relations for criminal prosecution,
and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983
Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973
Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch.
591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P.
2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to
different-sex couples). Post-Bowers even some of these States did not
adhere to the policy of suppressing homosexual conduct. Over the course
of the last decades, States with same-sex prohibitions have moved toward
abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600,
80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942
P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn.
App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992);
see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. §201.193).
In summary, the historical
grounds relied upon in Bowers are more complex than the majority
opinion and the concurring opinion by Chief Justice Burger indicate. Their
historical premises are not without doubt and, at the very least, are
overstated.
It must be acknowledged,
of course, that the Court in Bowers was making the broader point
that for centuries there have been powerful voices to condemn homosexual
conduct as immoral. The condemnation has been shaped by religious beliefs,
conceptions of right and acceptable behavior, and respect for the traditional
family. For many persons these are not trivial concerns but profound
and deep convictions accepted as ethical and moral principles to which
they aspire and which thus determine the course of their lives. These
considerations do not answer the question before us, however. The issue
is whether the majority may use the power of the State to enforce these
views on the whole society through operation of the criminal law. "Our
obligation is to define the liberty of all, not to mandate our own moral
code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.
S. 833, 850 (1992).
Chief Justice Burger
joined the opinion for the Court in Bowers and further explained
his views as follows: "Decisions of individuals relating to homosexual
conduct have been subject to state intervention throughout the history
of Western civilization. Condemnation of those practices is firmly rooted
in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As
with Justice White's assumptions about history, scholarship casts some doubt
on the sweeping nature of the statement by Chief Justice Burger as it pertains
to private homosexual conduct between consenting adults. See, e.g., Eskridge,
Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656.
In all events we think that our laws and traditions in the past half century
are of most relevance here. These references show an emerging awareness
that liberty gives substantial protection to adult persons in deciding how
to conduct their private lives in matters pertaining to sex. "[H]istory and
tradition are the starting point but not in all cases the ending point of
the substantive due process inquiry." County of Sacramento v. Lewis,
523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
This emerging recognition
should have been apparent when Bowers was decided. In 1955 the
American Law Institute promulgated the Model Penal Code and made clear
that it did not recommend or provide for "criminal penalties for consensual
sexual relations conducted in private." ALI, Model Penal Code §213.2,
Comment 2, p. 372 (1980). It justified its decision on three grounds: (1)
The prohibitions undermined respect for the law by penalizing conduct
many people engaged in; (2) the statutes regulated private conduct not
harmful to others; and (3) the laws were arbitrarily enforced and thus
invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280
(Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform
to the Model Penal Code. Other States soon followed. Brief for Cato Institute
as Amicus Curiae 15-16.
In Bowers
the Court referred to the fact that before 1961 all 50 States had outlawed
sodomy, and that at the time of the Court's decision 24 States and the District
of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed
out that these prohibitions often were being ignored, however. Georgia,
for instance, had not sought to enforce its law for decades. Id.,
at 197-198, n. 2 ("The history of nonenforcement suggests the moribund
character today of laws criminalizing this type of private, consensual
conduct").
The sweeping references
by Chief Justice Burger to the history of Western civilization and to
Judeo-Christian moral and ethical standards did not take account of other
authorities pointing in an opposite direction. A committee advising the
British Parliament recommended in 1957 repeal of laws punishing homosexual
conduct. The Wolfenden Report: Report of the Committee on Homosexual
Offenses and Prostitution (1963). Parliament enacted the substance
of those recommendations 10 years later. Sexual Offences Act 1967, §1.
Of even more importance,
almost five years before Bowers was decided the European Court
of Human Rights considered a case with parallels to Bowers and
to today's case. An adult male resident in Northern Ireland alleged he
was a practicing homosexual who desired to engage in consensual homosexual
conduct. The laws of Northern Ireland forbade him that right. He alleged
that he had been questioned, his home had been searched, and he feared criminal
prosecution. The court held that the laws proscribing the conduct were invalid
under the European Convention on Human Rights. Dudgeon v. United Kingdom,
45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that
are members of the Council of Europe (21 nations then, 45 nations now),
the decision is at odds with the premise in Bowers that the claim
put forward was insubstantial in our Western civilization.
In our own constitutional
system the deficiencies in Bowers became even more apparent in
the years following its announcement. The 25 States with laws prohibiting
the relevant conduct referenced in the Bowers decision are reduced
now to 13, of which 4 enforce their laws only against homosexual conduct.
In those States where sodomy is still proscribed, whether for same-sex
or heterosexual conduct, there is a pattern of nonenforcement with respect
to consenting adults acting in private. The State of Texas admitted in
1994 that as of that date it had not prosecuted anyone under those circumstances.
State v. Morales, 869 S. W. 2d 941, 943.
Two principal cases
decided after Bowers cast its holding into even more doubt. In
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), the Court reaffirmed the substantive force of the liberty protected
by the Due Process Clause. The Casey decision again confirmed that
our laws and tradition afford constitutional protection to personal decisions
relating to marriage, procreation, contraception, family relationships,
child rearing, and education. Id., at 851. In explaining the respect
the Constitution demands for the autonomy of the person in making these
choices, we stated as follows:
"These matters,
involving the most intimate and personal choices a person may make in
a lifetime, choices central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment. At the heart of liberty
is the right to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under compulsion
of the State." Ibid.
Persons in a homosexual
relationship may seek autonomy for these purposes, just as heterosexual
persons do. The decision in Bowers would deny them this right.
The second post-Bowers
case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996).
There the Court struck down class-based legislation directed at homosexuals
as a violation of the Equal Protection Clause. Romer invalidated
an amendment to Colorado's constitution which named as a solitary class
persons who were homosexuals, lesbians, or bisexual either by "orientation,
conduct, practices or relationships," id., at 624 (internal quotation
marks omitted), and deprived them of protection under state antidiscrimination
laws. We concluded that the provision was "born of animosity toward the
class of persons affected" and further that it had no rational relation
to a legitimate governmental purpose. Id., at 634.
As an alternative
argument in this case, counsel for the petitioners and some amici
contend that Romer provides the basis for declaring the Texas statute
invalid under the Equal Protection Clause. That is a tenable argument,
but we conclude the instant case requires us to address whether Bowers
itself has continuing validity. Were we to hold the statute invalid under
the Equal Protection Clause some might question whether a prohibition
would be valid if drawn differently, say, to prohibit the conduct both
between same-sex and different-sex participants.
Equality of treatment
and the due process right to demand respect for conduct protected by the
substantive guarantee of liberty are linked in important respects, and
a decision on the latter point advances both interests. If protected conduct
is made criminal and the law which does so remains unexamined for its
substantive validity, its stigma might remain even if it were not enforceable
as drawn for equal protection reasons. When homosexual conduct is made
criminal by the law of the State, that declaration in and of itself is an
invitation to subject homosexual persons to discrimination both in the
public and in the private spheres. The central holding of Bowers
has been brought in question by this case, and it should be addressed. Its
continuance as precedent demeans the lives of homosexual persons.
The stigma this criminal
statute imposes, moreover, is not trivial. The offense, to be sure,
is but a class C misdemeanor, a minor offense in the Texas legal system.
Still, it remains a criminal offense with all that imports for the dignity
of the persons charged. The petitioners will bear on their record the history
of their criminal convictions. Just this Term we rejected various challenges
to state laws requiring the registration of sex offenders. Smith v.
Doe, 538 U. S. __ (2003); Connecticut Dept. of Public Safety v.
Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an
adult for private, consensual homosexual conduct under the statute here
in question the convicted person would come within the registration laws
of a least four States were he or she to be subject to their jurisdiction.
Pet. for Cert. 13, and n. 12 (citing Idaho Code §§18-8301 to 18-8326
(Cum. Supp. 2002); La. Code Crim. Proc. Ann., §§15:540-15:549
(West 2003); Miss. Code Ann. §§45-33-21 to 45-33-57 (Lexis 2003);
S. C. Code Ann. §§23-3-400 to 23-3-490 (West 2002)). This underscores
the consequential nature of the punishment and the state-sponsored condemnation
attendant to the criminal prohibition. Furthermore, the Texas criminal
conviction carries with it the other collateral consequences always following
a conviction, such as notations on job application forms, to mention but
one example.
The foundations of
Bowers have sustained serious erosion from our recent decisions
in Casey and Romer. When our precedent has been thus weakened,
criticism from other sources is of greater significance. In the United
States criticism of Bowers has been substantial and continuing,
disapproving of its reasoning in all respects, not just as to its historical
assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution--A
Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350
(1992). The courts of five different States have declined to follow it in
interpreting provisions in their own state constitutions parallel to the
Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado,
349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327,
510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942
P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn.
App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers
relied on values we share with a wider civilization, it should be noted
that the reasoning and holding in Bowers have been rejected elsewhere.
The European Court of Human Rights has followed not Bowers but
its own decision in Dudgeon v. United Kingdom. See P. G. &
J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct.
H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993);
Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations,
too, have taken action consistent with an affirmation of the protected
right of homosexual adults to engage in intimate, consensual conduct. See
Brief for Mary Robinson et al. as Amici Curiae 11-12. The right
the petitioners seek in this case has been accepted as an integral part
of human freedom in many other countries. There has been no showing that
in this country the governmental interest in circumscribing personal choice
is somehow more legitimate or urgent.
The doctrine of stare
decisis is essential to the respect accorded to the judgments of
the Court and to the stability of the law. It is not, however, an inexorable
command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare
decisis is not an inexorable command; rather, it 'is a principle
of policy and not a mechanical formula of adherence to the latest decision'")
(quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In
Casey we noted that when a Court is asked to overrule a precedent
recognizing a constitutional liberty interest, individual or societal
reliance on the existence of that liberty cautions with particular strength
against reversing course. 505 U. S., at 855-856; see also id.,
at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding
in Bowers, however, has not induced detrimental reliance comparable
to some instances where recognized individual rights are involved. Indeed,
there has been no individual or societal reliance on Bowers of
the sort that could counsel against overturning its holding once there
are compelling reasons to do so. Bowers itself causes uncertainty,
for the precedents before and after its issuance contradict its central
holding.
The rationale of
Bowers does not withstand careful analysis. In his dissenting
opinion in Bowers Justice Stevens came to these conclusions:
"Our prior cases
make two propositions abundantly clear. First, the fact that the governing
majority in a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the practice;
neither history nor tradition could save a law prohibiting miscegenation
from constitutional attack. Second, individual decisions by married persons,
concerning the intimacies of their physical relationship, even when not
intended to produce offspring, are a form of "liberty" protected by the
Due Process Clause of the Fourteenth Amendment. Moreover, this protection
extends to intimate choices by unmarried as well as married persons." 478
U. S., at 216 (footnotes and citations omitted).
Justice Stevens'
analysis, in our view, should have been controlling in Bowers
and should control here.
Bowers was
not correct when it was decided, and it is not correct today. It ought
not to remain binding precedent. Bowers v. Hardwick should be and
now is overruled.
The present case does
not involve minors. It does not involve persons who might be injured or
coerced or who are situated in relationships where consent might not easily
be refused. It does not involve public conduct or prostitution. It does
not involve whether the government must give formal recognition to any relationship
that homosexual persons seek to enter. The case does involve two adults
who, with full and mutual consent from each other, engaged in sexual practices
common to a homosexual lifestyle. The petitioners are entitled to respect
for their private lives. The State cannot demean their existence or control
their destiny by making their private sexual conduct a crime. Their right
to liberty under the Due Process Clause gives them the full right to engage
in their conduct without intervention of the government. "It is a promise
of the Constitution that there is a realm of personal liberty which the
government may not enter." Casey, supra, at 847. The Texas statute
furthers no legitimate state interest which can justify its intrusion into
the personal and private life of the individual.
Had those who drew
and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth
Amendment known the components of liberty in its manifold possibilities,
they might have been more specific. They did not presume to have this
insight. They knew times can blind us to certain truths and later generations
can see that laws once thought necessary and proper in fact serve only
to oppress. As the Constitution endures, persons in every generation
can invoke its principles in their own search for greater freedom.
The judgment of the
Court of Appeals for the Texas Fourteenth District is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered
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The following case is associated with Webnote C on
page 46.
Goss
v. Lopez
419 U.S. 565
U.S. Supreme Court
January 22, 1975
MR. JUSTICE WHITE
delivered the opinion of the Court.
This appeal by various administrators of the Columbus, Ohio, Public
School System (CPSS) challenges the judgment of a three-judge federal
court, declaring that appellees--various high school students in the CPSS--were
denied due process of law contrary to the command of the Fourteenth Amendment
in that they were temporarily suspended from their high schools without
a hearing either prior to suspension or within a reasonable time thereafter,
and enjoining the administrators to remove all references to such suspensions
from the students' records.
I
Ohio law, Rev. Code
Ann. § 3313.64 (1972), provides for free education to all children
between the ages of six and 21. Section 3313.66 of the Code empowers the
principal of an Ohio public school to suspend a pupil for misconduct
for up to 10 days or to expel him. In either case, he must notify the student's
parents within 24 hours and state the reasons for his action. A pupil
who is expelled, or his parents, may appeal the decision to the Board
of Education and in connection therewith shall be permitted to be heard
at the board meeting. The Board may reinstate the pupil following the hearing.
No similar procedure is provided in § 3313.66 or any other provision
of state law for a suspended student. Aside from a regulation tracking the
statute, at the time of the imposition of the suspensions in this case the
CPSS itself had not issued any written procedure applicable to suspensions....
Nor, so far as the record reflects, had any of the individual high schools
involved in this case.... Each, however, had formally or informally described
the conduct for which suspension could be imposed.
The nine named appellees, each of whom alleged that he or she had
been suspended from public high school in Columbus for up to 10 days without
a hearing pursuant to § 3313.66, filed an action under 42 U. S. C.
§ 1983 against the Columbus Board of Education and various administrators
of the CPSS. The complaint sought a declaration that § 3313.66 was
unconstitutional in that it permitted public school administrators to
deprive plaintiffs of their rights to an education without a hearing of
any kind, in violation of the procedural due process component of the Fourteenth
Amendment. It also sought to enjoin the public school officials from issuing
future suspensions pursuant to § 3313.66 and to require them to remove
references to the past suspensions from the records of the students in
question....
The proof below established that the suspensions arose out of a
period of widespread student unrest in the CPSS during February and March
1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington,
Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students
at the Marion-Franklin High School and were each suspended for 10 days...
on account of disruptive or disobedient conduct committed in the presence
of the school administrator who ordered the suspension. One of these,
Tyrone Washington, was among a group of students demonstrating in the school
auditorium while a class was being conducted there. He was ordered by the
school principal to leave, refused to do so, and was suspended. Rudolph
Sutton, in the presence of the principal, physically attacked a police
officer who was attempting to remove Tyrone Washington from the auditorium.
He was immediately suspended. The other four Marion-Franklin students were
suspended for similar conduct. None was given a hearing to determine the
operative facts underlying the suspension, but each, together with his or
her parents, was offered the opportunity to attend a conference, subsequent
to the effective date of the suspension, to discuss the student's future.
Two named plaintiffs, Dwight Lopez and Betty Crome, were students
at the Central High School and McGuffey Junior High School, respectively.
The former was suspended in connection with a disturbance in the lunchroom
which involved some physical damage to school property.... Lopez testified
that at least 75 other students were suspended from his school on the
same day. He also testified below that he was not a party to the destructive
conduct but was instead an innocent bystander. Because no one from the
school testified with regard to this incident, there is no evidence in
the record indicating the official basis for concluding otherwise. Lopez
never had a hearing.
Betty Crome was present at a demonstration at a high school other
than the one she was attending. There she was arrested together with others,
taken to the police station, and released without being formally charged.
Before she went to school on the following day, she was notified that
she had been suspended for a 10-day period. Because no one from the school
testified with respect to this incident, the record does not disclose how
the McGuffey Junior High School principal went about making the decision
to suspend Crome, nor does it disclose on what information the decision
was based. It is clear from the record that no hearing was ever held....
II
At the outset, appellants
contend that because there is no constitutional right to an education at
public expense, the Due Process Clause does not protect against expulsions
from the public school system. This position misconceives the nature of
the issue and is refuted by prior decisions. The Fourteenth Amendment forbids
the State to deprive any person of life, liberty, or property without due
process of law. Protected interests in property are normally "not created
by the Constitution. Rather, they are created and their dimensions are
defined" by an independent source such as state statutes or rules entitling
the citizen to certain benefits.....
Although Ohio may not be constitutionally obligated to establish
and maintain a public school system, it has nevertheless done so and
has required its children to attend. Those young people do not "shed their
constitutional rights" at the schoolhouse door. Tinker v. Des Moines
School Dist., 393 U.S. 503, 506 (1969). "The Fourteenth Amendment,
as now applied to the States, protects the citizen against the State itself
and all of its creatures--Boards of Education not excepted." West Virginia
Board of Education v. Barnette, 319 U.S. 624, 637 (1943). The authority
possessed by the State to prescribe and enforce standards of conduct in
its schools although concededly very broad, must be exercised consistently
with constitutional safeguards. Among other things, the State is constrained
to recognize a student's legitimate entitlement to a public education as
a property interest which is protected by the Due Process Clause and which
may not be taken away for misconduct without adherence to the minimum procedures
required by that Clause.
The Due Process Clause
also forbids arbitrary deprivations of liberty. "Where a person's good
name, reputation, honor, or integrity is at stake because of what the government
is doing to him," the minimal requirements of the Clause must be satisfied.
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board
of Regents v. Roth, supra, at 573. School authorities here suspended
appellees from school for periods of up to 10 days based on charges of misconduct.
If sustained and recorded, those charges could seriously damage
the students' standing with their fellow pupils and their teachers as
well as interfere with later opportunities for higher education and employment.....
It is apparent that the claimed right of the State to determine unilaterally
and without process whether that misconduct has occurred immediately collides
with the requirements of the Constitution.....
A short suspension is, of course, a far milder deprivation than
expulsion. But, "education is perhaps the most important function of state
and local governments,"... and the total exclusion from the educational
process for more than a trivial period, and certainly if the suspension
is for 10 days, is a serious event in the life of the suspended child.
Neither the property interest in educational benefits temporarily denied
nor the liberty interest in reputation, which is also implicated, is so
insubstantial that suspensions may constitutionally be imposed by any procedure
the school chooses, no matter how arbitrary....
III
.... At the very
minimum, therefore, students facing suspension and the consequent interference
with a protected property interest must be given some kind of notice and
afforded some kind of hearing. "Parties whose rights are to be affected
are entitled to be heard; and in order that they may enjoy that right they
must first be notified."...
It also appears from our cases that the timing and content of the
notice and the nature of the hearing will depend on appropriate accommodation
of the competing interests involved..... The student's interest is to
avoid unfair or mistaken exclusion from the educational process, with
all of its unfortunate consequences. The Due Process Clause will not shield
him from suspensions properly imposed, but it disserves both his interest
and the interest of the State if his suspension is in fact unwarranted.
The concern would be mostly academic if the disciplinary process were a
totally accurate, unerring process, never mistaken and never unfair. Unfortunately,
that is not the case, and no one suggests that it is. Disciplinarians,
although proceeding in utmost good faith, frequently act on the reports
and advice of others; and the controlling facts and the nature of the
conduct under challenge are often disputed. The risk of error is not at
all trivial, and it should be guarded against if that may be done without
prohibitive cost or interference with the educational process.
The difficulty is that our schools are vast and complex. Some modicum
of discipline and order is essential if the educational function is to
be performed. Events calling for discipline are frequent occurrences and
sometimes require immediate, effective action. Suspension is considered
not only to be a necessary tool to maintain order but a valuable educational
device. The prospect of imposing elaborate hearing requirements in every
suspension case is viewed with great concern, and many school authorities
may well prefer the untrammeled power to act unilaterally, unhampered by
rules about notice and hearing. But it would be a strange disciplinary system
in an educational institution if no communication was sought by the disciplinarian
with the student in an effort to inform him of his dereliction and to let
him tell his side of the story in order to make sure that an injustice is
not done. "[Fairness] can rarely be obtained by secret, one-sided determination
of facts decisive of rights...." "Secrecy is not congenial to truth-seeking
and self-righteousness gives too slender an assurance of rightness. No better
instrument has been devised for arriving at truth than to give a person
in jeopardy of serious loss notice of the case against him and opportunity
to meet it."....
We do not believe that school authorities must be totally free
from notice and hearing requirements if their schools are to operate
with acceptable efficiency. Students facing temporary suspension have
interests qualifying for protection of the Due Process Clause, and due
process requires, in connection with a suspension of 10 days or less, that
the student be given oral or written notice of the charges against him and,
if he denies them, an explanation of the evidence the authorities have and
an opportunity to present his side of the story. The Clause requires at
least these rudimentary precautions against unfair or mistaken findings
of misconduct and arbitrary exclusion from school....
There need be no delay between the time "notice" is given and the
time of the hearing. In the great majority of cases the disciplinarian
may informally discuss the alleged misconduct with the student minutes
after it has occurred. We hold only that, in being given an opportunity
to explain his version of the facts at this discussion, the student first
be told what he is accused of doing and what the basis of the accusation
is. Lower courts which have addressed the question of the nature
of the procedures required in short suspension cases have reached the same
conclusion..... Since the hearing may occur almost immediately following
the misconduct, it follows that as a general rule notice and hearing should
precede removal of the student from school. We agree with the District Court,
however, that there are recurring situations in which prior notice and
hearing cannot be insisted upon. Students whose presence poses a continuing
danger to persons or property or an ongoing threat of disrupting the academic
process may be immediately removed from school. In such cases, the necessary
notice and rudimentary hearing should follow as soon as practicable, as the
District Court indicated.
In holding as we do, we do not believe that we have imposed procedures
on school disciplinarians which are inappropriate in a classroom setting.
Instead we have imposed requirements which are, if anything, less than
a fair-minded school principal would impose upon himself in order to
avoid unfair suspensions. Indeed, according to the testimony of the
principal of Marion-Franklin High School, that school had an informal
procedure, remarkably similar to that which we now require, applicable
to suspensions generally but which was not followed in this case. Similarly,
according to the most recent memorandum applicable to the entire CPSS,...,
school principals in the CPSS are now required by local rule to provide
at least as much as the constitutional minimum which we have described.
We stop short of construing the Due Process Clause to require,
countrywide, that hearings in connection with short suspensions must
afford the student the opportunity to secure counsel, to confront and
cross-examine witnesses supporting the charge, or to call his own witnesses
to verify his version of the incident. Brief disciplinary suspensions
are almost countless. To impose in each such case even truncated trial-type
procedures might well overwhelm administrative facilities in many places
and, by diverting resources, cost more than it would save in educational
effectiveness. Moreover, further formalizing the suspension process and
escalating its formality and adversary nature may not only make it too costly
as a regular disciplinary tool but also destroy its effectiveness as part
of the teaching process.
On the other hand, requiring effective notice and informal hearing
permitting the student to give his version of the events will provide
a meaningful hedge against erroneous action. At least the disciplinarian
will be alerted to the existence of disputes about facts and arguments
about cause and effect. He may then determine himself to summon the accuser,
permit cross-examination, and allow the student to present his own witnesses.
In more difficult cases, he may permit counsel. In any event, his discretion
will be more informed and we think the risk of error substantially reduced.
Requiring that there be at least an informal give-and-take between
student and disciplinarian, preferably prior to the suspension, will
add little to the factfinding function where the disciplinarian himself
has witnessed the conduct forming the basis for the charge. But things
are not always as they seem to be, and the student will at least have the
opportunity to characterize his conduct and put it in what he deems the
proper context.
We should also make it clear that we have addressed ourselves solely
to the short suspension, not exceeding 10 days. Longer suspensions or
expulsions for the remainder of the school term, or permanently, may
require more formal procedures. Nor do we put aside the possibility that
in unusual situations, although involving only a short suspension, something
more than the rudimentary procedures will be required.
IV
The District Court
found each of the suspensions involved here to have occurred without a
hearing, either before or after the suspension, and that each suspension
was therefore invalid and the statute unconstitutional insofar as it permits
such suspensions without notice or hearing. Accordingly, the judgment is
Affirmed.
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The following two cases are associated
with Webnote D on page 53.
People
v. Carl Malchow
739 N.E.2d 433
Illinois Supreme
Court
September 21, 2000
JUSTICE RATHJE delivered
the opinion of the court:
At issue in this appeal is whether defendant has met his burden
of showing that the Sex Offender Registration Act (Registration Act) (730
ILCS 150/1 et seq. (West 1998)) and the Sex Offender and Child
Murderer Community Notification Law (Notification Law) (730 ILCS 152/101
et seq. (West 1998)) are unconstitutional. We hold
that he has not.
BACKGROUND
On December 17, 1997, the State indicted defendant, Carl Malchow,
with one count of failure to register as a sex offender (730 ILCS 150/10
(West 1998)). The State alleged that defendant was required to register
as a sex offender because of his 1988 conviction of aggravated criminal
sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16). Defendant moved
to declare the Registration Act and the Notification Law unconstitutional.
The trial court denied the motion. Following a stipulated bench trial,
the court found defendant guilty. The court sentenced him to 18 months'
conditional discharge and fined him $ 500. Defendant appealed, and the
appellate court affirmed defendant's conviction. The court reaffirmed
its earlier holding in People v. Logan, 302 Ill. App. 3d 319, 235
Ill. Dec. 539, 705 N.E.2d 152 (1998), that the Registration Act and the Notification
Law are constitutional. State v. Malchow, 306 Ill. App. 3d
665, 714 N.E.2d 583, 239 Ill. Dec. 664. The court, however, reversed defendant's
sentence because it was illegal and void. Because the trial court failed
to sentence defendant to the mandatory minimum of seven days' confinement
in the county jail, the appellate court remanded the cause for resentencing.
306 Ill. App. 3d 676. We granted defendant's petition for leave to appeal
to determine whether the Registration Act and the Notification Law are constitutional.
Defendant argues that the Registration Act and the Notification
Law are unconstitutional for the following reasons: (1) they violate the
constitutional prohibition against the ex post facto application
of laws; (2) they impose cruel, unusual, and disproportionate punishment;
(3) they impermissibly infringe upon a person's right to privacy; (4) they
subject a defendant to double jeopardy; (5) they violate the due process and
equal protection clauses; and (6) Public Act 89-8, which made the Registration
Act and Notification Law applicable to defendant, was passed in violation
of the single subject clause of the Illinois Constitution (Ill. Const. 1970,
art. IV, §§ 8(d)).
The Registration Act and Notification Law set out a comprehensive
scheme providing for the registration and community notification of sex
offenders. Pursuant to the Registration Act, all persons who are sex offenders
(730 ILCS 150/2(A) (West 1998)) under the Act are required to register
with local law enforcement officials (730 ILCS 150/3 (West 1998)). The
category of sex offenders includes any person who is convicted of one of
the Registration Act's enumerated sex offenses or who is certified as
a sexually dangerous person pursuant to the Sexually Dangerous Persons
Act (725 ILCS 205/0.01 et seq. (West 1998)).
The registrant must provide identification and documentation that
substantiates proof of residence at the registering address and must pay
a $10 registration fee and $5 annual renewal fee. 730 ILCS 150/3(c)(6)
(West 1998). Additionally, the registrant must provide a written and
signed statement, and registration may also include the registrant's
fingerprints and photograph. 730 ILCS 150/8 (West 1998). Registrants
must keep law enforcement officials notified of any change in address
and must report periodically to the appropriate law enforcement agency.
730 ILCS 150/6 (West 1998). The duty to register lasts for 10 years after
a conviction, or, in the case of a sexually dangerous person who is released
or found to be no longer sexually dangerous and discharged, for the rest
of his or her natural life. 730 ILCS 150/7 (West 1998). Failure to comply
with the Registration Act is a Class 4 felony. 730 ILCS 150/10 (West 1998).
Pursuant to the Notification Law, the Department of State Police
is required to maintain a sex offender database for the purpose of identifying
sex offenders and making information about them available to the persons
specified in the Act. 730 ILCS 152/115 (West 1998). The appropriate law
enforcement agency is responsible for disclosing the name, address, date
of birth, and offense or adjudication of all sex offenders required to
register pursuant to the Registration Act. The information is disclosed
to the school board, school principals, and child care facilities in the
county where the offender resides. 730 ILCS 152/120(a) (West 1998). Additionally,
that same information may be disclosed to any person likely to encounter
a sex offender (730 ILCS 152/120(b) (West 1998)), and the information is also
made available for public inspection at municipal police departments and
county sheriff's offices. 730 ILCS 152/120(c) (West 1998).
ANALYSIS
Standard of Review
A statute is presumed constitutional, and the party challenging
the statute bears the burden of demonstrating its invalidity. In re
K.C., 186 Ill. 2d 542, 550, 239 Ill. Dec. 572, 714 N.E.2d 491 (1999).
This court has a duty to construe a statute in a manner that upholds its
validity and constitutionality if it can be reasonably done. People
v. Fisher, 184 Ill. 2d 441, 448, 235 Ill. Dec. 454, 705 N.E.2d 67 (1998).
Whether a statute is constitutional is a question of law that we review
de novo. Fisher, 184 Ill. 2d at 448.
Ex Post Facto Law
Defendant first argues that the Registration Act and the Notification
Law violate the constitutional prohibitions against ex post facto
laws. See U.S. Const., art. I, §§§§ 9, 10; Ill. Const.
1970, art. I, §§ 16. These constitutional provisions restrain
Congress and the state legislatures from enacting arbitrary or vindictive
legislation and assure that statutes give fair warning of their effect.
Fletcher v. Williams, 179 Ill. 2d 225, 229, 227 Ill. Dec. 942,
688 N.E.2d 635 (1997). A law is ex post facto if it is both retroactive
and disadvantageous to the defendant. Fletcher, 179 Ill. 2d at 230.
A law disadvantages a defendant if it criminalizes an act that was innocent
when done, increases the punishment for a previously committed offense,
or alters the rules of evidence by making a conviction easier. People
v. Franklin, 135 Ill. 2d 78, 107, 142 Ill. Dec. 152, 552 N.E.2d 743
(1990).
There is no question that the Registration Act and the Notification
Law have retroactive effect. At the time of defendant's offense, he was
not required to register as a sex offender. Under the version of the Act
at issue in this case, he is required to register. See 730 ILCS 150/2(A)(1),
(B)(1), 3(c)(2) (West 1998).
Defendant further contends that the Registration Act and the Notification
Law disadvantage him because they increase the punishment for previously
committed offenses. Resolution of this contention turns on the question
of whether the provisions of the Registration Act and the Notification
Law constitute punishment. In People v. Adams, 144 Ill. 2d 381,
163 Ill. Dec. 483, 581 N.E.2d 637 (1991), we upheld an earlier version
of the Registration Act. As part of that decision, we held that requiring
sex offenders to register is not punishment. Adams, 144 Ill. 2d
at 386-90. Adams does not completely dispose of defendant's argument,
however, because the community notification provisions were not in effect
at the time of that decision. We thus consider defendant's ex post facto
argument as it relates to the Notification Law.
In Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501,
117 S. Ct. 2072 (1997), the United States Supreme Court considered whether
Kansas' Sexually Violent Predator Act constituted punishment. The defendant
in that case argued that the Kansas law violated the ex post facto
clause because it imposed additional punishment for past conduct for which
he had already been convicted and forced to serve a prison sentence.
The Supreme Court first considered the legislative intent behind the
law and held that the Kansas legislature intended to create a civil commitment
scheme. Hendricks, 521 U.S. at 361, 138 L. Ed. 2d at 515,
117 S. Ct. at 2082. The Supreme Court then examined several factors to determine
whether the law had a punitive effect despite its nonpunitive intent, and
concluded that it did not. Hendricks, 521 U.S. at 362-69, 138 L.
Ed. 2d at 515-19, 117 S. Ct. at 2082-85. Subsequently, several states have
used the "intent-effects" test to determine whether sex offender registration
and/or notification laws amount to punishment in violation of the ex
post facto clause. See, e.g., Kellar v. Fayetteville Police Department,
339 Ark. 274, 5 S.W.3d 402 (1999); People v. Logan, 302 Ill. App.
3d 319, 327-31, 235 Ill. Dec. 539, 705 N.E.2d 152 (1998); State v. Pickens,
558 N.W.2d 396 (Iowa 1997); State v. Cook, 83 Ohio St. 3d 404,
700 N.E.2d 570 (1998); Meinders v. Weber, 2000 SD 2, 604 N.W.2d
248 (S.D. 2000).
We first consider the legislative intent behind the Notification
Law. In Adams, we held that the legislature's intent in requiring
registration of sex offenders was to create an additional measure of
protection for children from the increasing incidence of sexual assault
and child abuse. Adams, 144 Ill. 2d at 387. We likewise believe
that protection of the public, rather than punishing sex offenders and
child murderers, is the intent of the Notification Law.
Defendant argues that public notification is the modern day equivalent
of "branding and shaming," and that "historically, stigmatization and
banishment have been considered punitive measures." A simple reading
of the act shows, however, that the intent of the Notification Law is
not to stigmatize and shame sex offenders. Rather, the Act is carefully
tailored so that the information is disseminated in such a way to protect
the public. The name, address, date of birth, and offense or adjudication
of sex offenders is given to school boards and child care facilities.
Additionally, the information may be given to anyone likely to encounter
a sex offender. Otherwise, the information, which is already a matter
of public record, is kept at law enforcement headquarters and is available
on request. The limited dissemination of the information clearly demonstrates
that the Notification Law is intended to protect the public rather than
to punish sex offenders.
Even if the legislature's intent is not to create a punitive scheme,
in certain circumstances the legislature's intent will be disregarded
where the party challenging the statute demonstrates by "the clearest proof"
that the statute's effect is so punitive that it negates the legislature's
intent. Hendricks, 521 U.S. at 361, 138 L. Ed. 2d at 515, 117 S.
Ct. at 2082.
Courts have generally looked to the factors enunciated in Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554
(1963), to determine whether a statute has a punitive effect despite
its nonpunitive intent. See, e.g., Hendricks, 521 U.S. at 362-69,
138 L. Ed. 2d at 515-19, 117 S. Ct. at 2082-85; Keller, 339 Ark.
at 282-87, 5 S.W.3d at 407-10; People v. Logan, 302 Ill. App. 3d
319, 329-31, 235 Ill. Dec. 539, 705 N.E.2d 152 (1998); Meinders,
604 N.W.2d at 256-62; Cook, 83 Ohio St. 3d at 418-23, 700 N.E.2d
at 582-85; Pickens, 558 N.W.2d at 398-400. Those factors
are: (1) whether the "sanction" involves an affirmative disability or
restraint; (2) whether the sanction has been historically regarded as
punishment; (3) whether the sanction comes into play only on a finding
of scienter; (4) whether operation of the sanction will promote retribution
and deterrence; (5) whether the behavior to which the sanction applies
is already a crime; (6) whether an alternative purpose to which the sanction
may rationally be connected is assignable for it; and (7) whether the
sanction appears excessive in relation to the alternative purpose assigned.
Mendoza-Martinez, 372 U.S. at 168-69, 9 L. Ed. 2d at 661,
83 S. Ct. at 567-68.
These factors clearly weigh in favor of the conclusion that the
Notification Law's effect is not so punitive that it defeats the legislature's
intent. First, the Notification Law does not place an affirmative
disability or restraint on sex offenders. Their movements and activities
are not restricted in any way. Defendant suggests that the Notification
Law leads to public shaming and restricts the ability of sex offenders
to reenter the community. The information, however, is not disseminated
to the community as a whole. Rather, the information is distributed only
to child care facilities, school boards, and those persons likely to encounter
a sex offender. Granted, that information is also available for public inspection
at local law enforcement agencies. As the Pickens court noted, though,
that information is "already a matter of public record and dissemination
of registration information does not place new information into the public
domain." Pickens, 558 N.W.2d at 399. Moreover, defendant's argument
consists of speculation about the collateral consequences of community notification,
which is irrelevant to the question of whether the Notification Law places
an affirmative disability or restraint on sex offenders.
We next consider whether community notification has traditionally
been regarded as punishment. Defendant argues that, historically, stigmatization
and banishment have been considered punitive measures. Although that
may be true, the Notification Law does not provide for "stigmatization
and banishment." Rather, it provides for a limited dissemination of matters
of public record to school boards, child care facilities, and those likely
to encounter sex offenders. This limited distribution clearly is not analogous
to stigmatization penalties such as branding, stockading, pillaring, or
banishment. Further, "dissemination of such information has never been
regarded as punishment when done in furtherance of a legitimate governmental
interest." E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3d Cir.
1997).
The next factor is whether the Notification Law has a scienter
requirement. Clearly it does not. The only requirement for the notification
provisions to become effective is that the offender is released into the
community. Accordingly, this factor does not indicate a punitive intent.
We next consider whether community notification promotes the traditional
punishment goals of deterrence and retribution. As stated previously,
we believe that the legislature's intention in passing the Notification
Law was protection of the public from sex offenders. The limited release
of information to those likely to encounter sex offenders could hardly
be characterized as "retribution." As to the deterrence factor, it is possible
that the Notification Law would have a deterrent effect. However, it
is unlikely that those not already deterred from committing sex offenses
by the possibility of a lengthy prison terms will be deterred by the additional
possibility of community notification. Moreover, even an obvious deterrent
purpose does not necessarily make a law punitive. Department of Revenue
v. Kurth Ranch, 511 U.S. 767, 780, 128 L. Ed. 2d 767, 779, 114 S.
Ct. 1937, 1946 (1994). We believe the statute's purpose is protection
of the public and that it does not significantly promote either retribution
or deterrence.
The next factor is whether the Notification Law applies to behavior
that is already criminal. This factor weighs in favor of defendant. The
appropriate people are notified only of those people who have committed
criminal actions.
The sixth factor is whether there is some purpose other than punishment
that can rationally be associated with the law. As set out above, we believe
the Notification Law shows on its face that its purpose is protection
of the public rather than punishment.
The final factor is whether the law is excessive in relation to
its alternative purpose. In other words, we consider whether the provisions
of the Notification Law are excessive in relation to the goal of protecting
the public from sex offenders. As already stated, the Notification Law
provides for a compilation of information about sex offenders and for a
limited distribution of that information. Further, the information disseminated
applies only to those people required to register as sex offenders, and
the registration requirement for most offenders terminates after 10 years
(see 730 ILCS 150/7 (West 1998)). We do not believe that the legislature
has chosen excessive measures to implement its goal of protecting
the public from sex offenders.
In sum, we conclude that defendant has not met his burden of showing
that the Notification Law has such a punitive effect that the legislature's
intent to create a nonpunitive scheme may be disregarded. After considering
all of the relevant factors, we conclude that the requirements of the
Notification Law are nonpunitive. We have previously held that requiring
sex offenders to register does not constitute punishment. Adams,
144 Ill. 2d at 386-90. Accordingly, defendant has not been subjected to
additional punishment for a previously committed offense, and his ex
post facto claim must therefore fail.
Cruel, Unusual, and Disproportionate Punishment
Defendant next contends that the Registration Act and the Notification
Law violate the constitutional prohibition against cruel and unusual
punishment (U.S. Const., amend. VIII). In Adams, we rejected an
eighth amendment challenge to the Registration Act, and held that registration
of sex offenders was not punishment. Adams, 144 Ill. 2d at 386-90.
We determined above that the Notification Law does not constitute punishment.
Accordingly, defendant's argument must fail. Defendant also argues that
the Registration Act violates the provision of the Illinois Constitution
that provides that, "All penalties shall be determined both according
to the seriousness of the offense and with the objective of restoring the
offender to useful citizenship" (Ill. Const. 1970, art. I, §§
11). Defendant points out that failing to register as a sex offender is
a Class 4 felony (730 ILCS 150/10 (West 1998)), and that this penalty can
potentially be applied to those sex offenders whose underlying conviction
was for only a Class A misdemeanor (730 ILCS 150/2(B)(1.7) (West 1998)).
Defendant has no standing to make this argument. A party may not raise a
constitutional challenge to a provision of the statute that does not affect
him or her. People v. Rogers, 133 Ill. 2d 1, 15, 139 Ill. Dec.
714, 549 N.E.2d 226 (1989). Defendant's underlying conviction was for a Class
2 felony, and he thus lacks standing to make this claim.
Right to Privacy
Defendant next argues that the Registration Act and the Notification
Law impermissibly infringe upon the constitutional right to privacy
that is implied in the United States Constitution (see Carey v. Population
Services International, 431 U.S. 678, 684, 52 L. Ed. 2d 675, 684,
97 S. Ct. 2010, 2016 (1977)) and explicitly provided for in the Illinois
Constitution (Ill. Const. 1970, art. I, §§ 6). The right to
privacy under the United States Constitution has been interpreted to apply
to personal decisions involving marriage, procreation, contraception, family
relationships, and child rearing and education. Carey, 431 U.S.
at 684-85, 52 L. Ed. 2d at 684, 97 S. Ct. at 2016; Logan, 302 Ill.
App. 3d at 333-34. The information defendant contends should not be disclosed
under the Notification Law is not within any of these recognized areas
of the right to privacy.
Defendant also has a right under the Illinois Constitution to be
free from unreasonable invasions of privacy. This provision of our constitution
"goes beyond federal constitutional guarantees by expressly recognizing
a zone of personal privacy" and this provision is stated "broadly and without
restrictions." Kunkel v. Walton, 179 Ill. 2d 519, 537, 228 Ill.
Dec. 626, 689 N.E.2d 1047 (1997). This provision, however, affords
protection only against unreasonable invasions of privacy. Kunkel,
179 Ill. 2d at 538.
Defendant has failed to meet his burden of demonstrating that the
Registration Act and Notification Law are invalid under the privacy clause
of the Illinois Constitution. Defendant devotes three short sentences
to arguing about the right to privacy under the United States Constitution
and never argues specifically with respect to the Illinois Constitution.
Defendant quotes the relevant constitutional provision at the beginning
of his argument and never mentions it again. Defendant does not cite or discuss
any of this court's cases that have held that the right to privacy under
the Illinois Constitution is broader than its Federal counterpart. See,
e.g., Kunkel, 179 Ill. 2d at 537; In re May 1991 Will County Grand
Jury, 152 Ill. 2d 381, 391, 178 Ill. Dec. 406, 604 N.E.2d 929 (1992).
In fact, beyond the quotations from the United States and Illinois Constitutions
and the three sentence argument relating to the United States Constitution,
defendant's right to privacy argument consists of one convoluted paragraph
that seems to be a procedural due process argument rather than a right to
privacy argument.
As stated earlier, a statute is presumed constitutional, and the
party challenging the statute bears the burden of demonstrating its
invalidity. K.C., 186 Ill. 2d at 550. A party obviously cannot
meet the burden of demonstrating a statute's invalidity under the privacy
clause of the Illinois Constitution merely by quoting that clause. Accordingly,
defendant's right to privacy challenge to the Registration Act and the
Notification Law must fail.
Double Jeopardy
Defendant next makes a brief argument that the Registration Act
and the Notification Law subject sex offenders to double jeopardy by punishing
them a second time for an offense. As we have held that the Registration
Act and the Notification Law are not punitive, we must reject this claim.
Due Process and Equal Protection
Defendant next argues that the Registration Act the Notification
law violate the due process and equal protection provisions of the United
States and Illinois Constitutions. Defendant lumps both of these contentions
into one seven-sentence argument. Three of those sentences are merely
quotes from the United States and Illinois Constitutions. Defendant's
"argument" amounts to little more than a suggestion. Glaringly absent
is any reasoned or developed argument. Accordingly, defendant has utterly
failed to satisfy his burden of showing that the Registration Act and
the Notification Law are unconstitutional on these bases.
Single Subject
Defendant's final contention is that Public Act 89-8, which amended
the Registration Act in such a way that it applied to defendant, was passed
in violation of the single subject clause of the Illinois Constitution
(Ill. Const. 1970, art. IV, §§ 8(d)). Defendant's argument on
this issue is once again very brief. Defendant lists the various statutes
that were amended by Public Act 89-8 and claims that they do not relate to
a single subject.
In determining whether a legislative enactment was passed in violation
of the single subject clause, we construe the term "subject" liberally
in favor of the legislature. People v. Reedy, 186 Ill. 2d 1, 8-9,
237 Ill. Dec. 74, 708 N.E.2d 1114 (1999). The subject of a bill may be
as broad as the legislature chooses, provided that the bill's provisions
have a natural and logical connection. Johnson v. Edgar, 176 Ill.
2d 499, 515, 224 Ill. Dec. 1, 680 N.E.2d 1372 (1997). The General Assembly
violates the single subject rule only when it includes within one act provisions
that by no fair interpretation have any natural and logical connection to
a single subject. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 354-55,
240 Ill. Dec. 710, 718 N.E.2d 191 (1999).
Public Act 89-8 was entitled "An Act in relation to criminal and
correctional matters, amending named acts." Pub. Act 89-8, eff. March
21, 1995. The Act amended the Illinois Vehicle Code (625 IlCS 5/1-100
et seq. (West 1994)), the Juvenile Court Act of 1987 (705
ILCS 405/1-1 et seq. (West 1994)), the Criminal Code of 1961 (720
ILCS 5/1-1 et seq. (West 1994)), the Rights of Crime Victims and
Witnesses Act (725 ILCS 120/1 et seq. (West 1994)), the Unified
Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 1994)), the
Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 1994)),
the Code of Criminal Procedure of 1963 [*23] (725 ILCS 5/100-1 et seq.
(West 1994)), the Statewide Grand Jury Act (725 ILCS 215/1 et seq.
(West 1994)), the Code of Civil Procedure (735 ILCS 5/1-101 et seq.
(West 1994)), the Interstate Agreements on Sexually Dangerous Persons Act
(45 ILCS 20/0.01 et seq. (West 1994)), part 10.5 of the Civil Administrative
Code of Illinois (20 ILCS 2605/55a et seq. (West 1994)), the
Intergovernmental Missing Child Recovery Act of 1984 (325 ILCS 40/1 et
seq. (West 1994)), and the Child Sex Offender Registration Act (730
ILCS 150/1 et seq. (West 1994)).
In People v. Wooters, 188 Ill. 2d 500, 512-13, 243 Ill.
Dec. 33, 722 N.E.2d 1102 (1999), this court held that the legislature
could pass legislation that amended several acts, as long the amendments
related to the single subject of "crime." In that case, however, we invalidated
Public Act 89-203 because some of the amendments did not have any connection
to the subject of crime. Wooters, 188 Ill. 2d at 513-18.
As stated, Public Act 89-8 was entitled "An Act in relation to
criminal and correctional matters, amending named acts." Defendant has
failed to meet his burden of demonstrating that any of the provisions
of Public Act 89-8 bear no natural and logical connection to this subject.
By their titles, three of the acts that were amended--the Medical Practice
Act of 1987, the Code of Civil Procedure, and the Civil Administrative
Code--seem unrelated to crime and correctional matters. A closer look
at these provisions, however, reveal that they are related to the single
subject. The amendment to the Medical Practice Act of 1987 explains that
section 22 of that Act, which sets out various grounds for disciplinary
action, does not apply to persons who carry out or assist in the court-ordered
imposition of the death penalty. See 225 ILCS 60/4(b) (West 1996). The
amendment to the Code of Civil Procedure provides that the Department
of Corrections shall notify the appropriate State's Attorney when there
is any settlement, verdict or judgment, in excess of $500 against the Department
or one of its agents, for damages incurred by a person who was committed
to the Department. See 735 ILCS 5/13-202.1(d) (West 1996). The amendment
to the Civil Administrative Code made a technical change to bring it into
compliance with the name change of the Habitual Child Sex Offender Registration
Act to the Sex Offender Registration Act. See 325 ILCS 40/6(k), 40/7(a)
(West 1996).
Defendant has failed
to meet his substantial burden of demonstrating that the provisions of
Public Act 89-8 bear no natural or logical connection to a single subject.
DEFENDANT'S SENTENCE
Defendant does not challenge the appellate court's decision to
reverse his sentence and remand the cause for resentencing. As the appellate
court properly noted, section 10 of the Registration Act states that
anyone convicted of a violation of the Act "shall, in addition to any
other penalty required by law, be required to serve a minimum period of
7 days confinement in the local county jail" (730 ILCS 150/10 (West 1998)).
Additionally, the appellate court correctly held that the State on appeal
was properly allowed to challenge defendant's |